Suchergebnisse

AbstractDuring the last decades, the focus of academic discourse on intellectual property rights has been on limitations and exceptions, with a strong accent on fundamental rights. However, until now such debates never involved protection of geographical indications under the sui generis system established in the European Union. That is quite remarkable. Already in its current form, the scope of protection granted to such rights is rather broad, as was confirmed and reinforced in the case law of the Court of Justice of the European Union. According to pending proposals, the scope and ambit of protection shall be strengthened further, without any counterbalance in the form of limitations being envisaged. This opinion argues that turning a blind eye to those developments is no commendable attitude for those concerned about imbalances in intellectual property rights.

AbstractWhile the creation and still outstanding implementation of the Unified Patent Jurisdiction system continue to cause contentious debates among academics and practitioners, the system introduced in the early 1990s for adjudication of conflicts concerning unitary trade marks (and, later on, unitary design rights) had the charm of simplicity. Building on the national court systems instead of providing for a genuine EU judiciary, the scheme could easily be fitted into existing structures. On the other hand, the imperfect, limping character of the system creates issues inter alia concerning international jurisdiction and applicable law. Furthermore, attributing jurisdiction in infringement litigation to separate national court hierarchies may jeopardize the coherence of the system. While the prospects for reform may be dim insofar as the system in its entirety is concerned, the detrimental effects of fragmentation could be overcome at least to some extent by creating a unitary catalogue of sanctions.

Abstract
Prolonging the life cycle of products in order to reduce waste and preserve resources is a call of our time. Entrepreneurial activity on the market for used and repaired goods should therefore be encouraged. However, problems may arise where trade-marked products are offered for sale after repair or refurbishment by third parties. While commercialisation of goods once put on the market by the trade mark holder or with their consent is free in principle, this does not apply when the condition of the product was changed after the first sale. This may cause a dilemma for persons who want to be active on the secondary market for repaired or refurbished goods: if the trade mark remains on the product, this may result in infringement; on the other hand, under the jurisprudence of the CJEU removal of the trade mark may equally be prohibited. This article explores the issue with a view to CJEU as well as German case law on this and adjacent scenarios. It concludes that instead of a strictly binary choice – either the trade mark remains on the product or is removed – a middle solution should apply that allows using the trade mark in relation to repaired or refurbished goods in addition to providing further information.

ECJ trade mark case law has been very rich in the past five years that are covered in this survey. While certain fundamental issues, such as the general concept of distinctiveness and descriptive character of marks as well as the assessment of likelihood of confusion were clarified already in the past, more recent decisions have elaborated on more sophisticated issues, such as the impact of trade mark functions on the scope of protection, which became relevant in particular in the context of marks being used in comparative advertisement as well as in keyword advertising. Other topics addressed in ECJ case law were, inter alia, exclusion from protection of product shapes conferring substantial value on the goods, as well as application in bad faith, infringement by goods entering the EU on transit, and the requirements for genuine use of a mark in the Community. The latter topic also figured strongly in political debates accompanying the current preparations for a major legislative overhaul of the European trade mark system. Commission proposals for amendment of the Community Trade Mark Regulation and the Trade Mark Directive were published at the end of March 2013 and will likely trigger more debates before the reform projects are ultimately concluded.